NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEPHANIE TASHIRO-TOWNLEY; No. 11-35819
SCOTT C. TOWNLEY,
D.C. No. 2:10-cv-01720-JCC
Plaintiffs - Appellants,
v. MEMORANDUM*
BANK OF NEW YORK MELLON, as
Trustee for the Certificateholders CWL,
Inc. Asset Backed Certificates, Series
2005-10, FKA Bank of New York; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Stephanie Tashiro-Townley and Scott C. Townley appeal pro se from the
district court’s judgment dismissing their action challenging the foreclosure sale of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
their residence. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm in part,
vacate in part, and remand.
The district court properly dismissed plaintiffs’ post-sale claims for
injunctive and declaratory relief because plaintiffs waived those claims by failing
to bring an action to enjoin the foreclosure sale. See Plein v. Lackey, 67 P.3d 1061,
1067 (Wash. 2003) (“[W]aiver of any postsale contest occurs where a party
(1) received notice of the right to enjoin the sale, (2) had actual or constructive
knowledge of a defense to foreclosure prior to the sale, and (3) failed to bring an
action to obtain a court order enjoining the sale.”).
However, Washington law provides an exception to the waiver doctrine for
claims for damages alleging violations of the Washington Consumer Protection
Act (“CPA”). See Wash. Rev. Code § 61.24.127(1)(b). After the district court
dismissed plaintiffs’ CPA claim, the Washington Supreme Court decided Bain v.
Metropolitan Mortgage Group, Inc., 285 P.3d 34, 51 (Wash. 2012), which held
that a plaintiff may meet the public interest element of a CPA claim by alleging
that Mortgage Electronic Registration System Inc. was unfairly or deceptively
characterized as the beneficiary of a deed of trust. See id. at 49 (elements of a CPA
claim). Because the district court did not have the benefit of Bain when it issued
2 11-35819
its order of dismissal, we remand to allow the court to reconsider plaintiffs’ CPA
claim.
Defendants’ request to strike portions of plaintiffs’ excerpts of record, set
forth in their answering brief, is denied. Defendants’ request to strike plaintiffs’
citations of supplemental authority, filed on November 8, 2013, is denied.
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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